Request By:
Ms. Anthea M. Boarman
Executive Director
Lexington Fayette Urban County Government Human Rights Commission
Lexington Fayette Government Center Annex
162 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Edgar A. Wallace has appealed to the Attorney General your denial of his request to inspect various records concerning complaints received by your Commission. The records requested are more specifically described as any complaints received by the Commission within the last year against the Lexington-Fayette Urban County Housing Authority and its employees.
In your letter of December 4, 1984 to Mr. Wallace, you denied his request to inspect the documents in question and set forth several reasons for the position you had taken. You acknowledged that the local human rights commission, created pursuant to KRS 344.310, is a public agency for purposes of the Open Records Law. You cited KRS 61.878(1)(j which states that among the public records which are excluded from public inspection, except upon the order of a court of competent jurisdiction, are public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly. You then cited those sections of the State Civil Rights Act designated as KRS 344.200(4) and KRS 344.250(6), both of which deal with the confidentiality of Commission records. You advised Mr. Wallace as follows:
". . . We respectfully decline to make public or share with any person or the Urban County Council, any records concerning the progress of any cases before the Commission except those which result in public orders. [There are no public orders concerning cases involving that entity in the files of the Commission from 1982 - 84.] . . . ."
OPINION OF THE ATTORNEY GENERAL
The Lexington Fayette Urban County Human Rights Commission was organized pursuant to KRS 344.310. When a matter is within its jurisdiction a local human rights commission has the same power and authority over that matter as the State Commission on Human Rights has over matters it is authorized to handle. See
Crutcher v. Commonwealth of Kentucky, 495 F.Supp. 603, 605 (E.D. Ky. 1980).
As noted in OAG 84-376, copy enclosed, a city-county human rights commission created under KRS 344.310 is a public agency operating under the laws of this state. Such an agency is a "public agency" under KRS 61.870(1) which for purposes of the Open Records Law defines a "public agency" as including "any other body which is created by state or local authority in any branch of government."
KRS 61.878 sets forth those public records which are excluded from the application of the Open Records Law and subject to inspection only upon the order of a court of competent jurisdiction. Included therein is KRS 61.878(1)(j) which includes, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS Chapter 344 states in part that a local city-county human rights commission is authorized to provide for the execution of the policies set forth in the state's Civil Rights Act and, thus, the provisions of KRS Chapter 344 also apply to city-county human rights commissions. KRS 344.200(4) provides in part that except for the terms of the conciliation agreement, neither the commission nor any of its personnel shall make public without the written consent of the complainant and the respondent information concerning efforts to eliminate an unlawful practice by conference, conciliation or persuasion. KRS 344.250(6) states in part that neither the commissioners nor the commission's personnel may legally make public with respect to a particular person without his consent information obtained by the commission except as is reasonably necessary to the conduct of a proceeding under this Chapter.
Information obtained by a city-county human relations commission would include the complaint of discrimination and the initial charge of discrimination as this is the beginning of the proceedings which may ultimately end in a conciliation agreement before the Commission or in proceedings in a court of law or before the Commission. See OAG 84-376, at page four.
Unless a proceeding has been instituted under KRS Chapter 344 all information obtained by the Commission remains privileged and the Commission must refuse to disclose such information without the person's consent unless ordered to do so by a court of competent jurisdiction. If a proceeding has been instituted, what is available for public inspection is dependent upon the level at which the proceeding has progressed.
If the proceeding is at the level dealt with in KRS 344.200 and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. See the authorities cited in OAG 84-376 relative to the purpose of federal nondisclosure provisions where a conciliation process is involved. If the proceeding has progressed to the point of a hearing under KRS 344.210, then the hearing transcript required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing, and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.
It is, therefore, the Opinion of the Attorney General that you acted properly in denying the request to inspect complaints and other documents received by the local human rights commission concerning the Lexington-Fayette Urban County Housing Authority and its employees as none of the complaints has apparently progressed to the point where an order of dismissal or a conciliation agreement has been entered or a hearing has been held. Under the provisions of the Open Records Law and the Civil Rights Act, a person's status as a councilmember does not give him any greater right to inspect public documents than is possessed by any member of the public generally.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5).